Termination after Challenge. If Licensee or any of its Affiliates directly or indirectly makes, files, maintains or supports any claim, demand, lawsuit, cause of action or other action or proceeding, including without limitation by reexamination, opposition, interference, declaratory judgment proceeding or invalidity or nullity proceeding, alleging that a Licensed Patent is invalid or unenforceable, Licensor may immediately upon written notice to Licensee terminate this Agreement. Notwithstanding anything to the contrary in this Agreement, and provided that the discovery request, subpoena or court order was not initiated by or on behalf of Licensee or any of its Affiliates and does not result from legal proceedings that were initiated or supported by or on behalf of the Licensee or any of its Affiliates, if Licensee or any of its Affiliates or sublicensees is subject to a discovery request, subpoena or court order relating to one or more of the Licensed Patents that might be violative, or might lead to any action or proceeding that might be a violation, of this Section 6.2.2, Licensee, such Affiliate or such sublicensee shall provide prompt notice to Licensor of such discovery request, subpoena or court order such that Licensor may take any steps necessary to obtain a protective or other order. If reasonable efforts to obtain such protective or other order are unsuccessful, of if further delay in compliance with such discovery request, subpoena or court order is reasonably likely to result in a finding of contempt, Licensee, such Affiliate or such sublicensee may comply with such discovery request, subpoena or court order.
Termination after Challenge. If Novavax or any of its Affiliates or sublicensees determines to make, file or maintain any claim, demand, lawsuit, cause of action or other action or proceeding, including without limitation by reexamination, opposition, interference, declaratory judgment proceeding or invalidity or nullity proceeding, alleging that a Licensed Patent Right is invalid, unenforceable, or not infringed by the development, manufacture, use, sale, or importation of a Product (collectively, an “Action”), Novavax shall notify Wyeth in writing of such determination (such notice a “Challenge Notice”) no less than ninety (90) days prior to making or filing such Action in any court or other governmental organization. For clarity, any claims made by Novavax in the defense of infringement actions commenced by or on behalf of Wyeth or its Affiliates will not be treated as Actions for purposes of this Section 7.4. If Wyeth receives a Challenge Notice from Novavax, Wyeth may, at its option and in its sole discretion deem the receipt of the Challenge Notice to be a material breach of this Agreement and terminate this Agreement by providing written notice of termination to Novavax, and if Wyeth so chooses, sxx Novavax for infringement and/or breach of contract in any forum of competent jurisdiction of Wyeth’s choosing; provided that the foregoing will not operate to waive any rights or defenses under law or equity. If Wyeth does not terminate the Agreement as provided in the previous sentence, then all amounts payable to Wyeth under this Agreement after the date of the Challenge Notice shall be doubled until such time as a court of competent jurisdiction or other governmental organization determines in an unappealed or unappealable decision that the subject Licensed Patent Rights are invalid or unenforceable, or, in the case of alleged non-infringement, that the Licensed Patent Rights are not infringed. For the avoidance of doubt, all such payments shall be made directly to Wyeth in accordance with the terms hereof and Novavax shall not have the right to make any such payments in or under any escrow arrangement. Novavax acknowledges and agrees that in the event that Novavax makes, files, or maintains an Action and/or fails to show that any Licensed Patent Right is invalid, unenforceable, or, in the case of asserted non-infringement, not infringed, Wyeth will suffer costs, expenses and damages that would be of uncertain amount and difficult to prove, and that in addition, if Novavax fails ...
Termination after Challenge. If Licensee initiates a challenge regarding validity, infringement, or enforceability of one or more Licensed Patents in a court, mediation, arbitration, or other proceeding, USM shall have the option to terminate the Agreement with respect to one or all of the Patents Rights earlier than the expiration. If USM exercises the option to terminate the Agreement, USM will provide the Licensee with written notice and termination will be effective thirty (30) days after the Licensee receives the notice.
